Tue December 17, 2013

Judge Rules Against NSA Bulk Collection Program

We're going to focus now on the National Security Agency. It's had a bad year, at least publicly. In a moment, we'll take a broader look at the significance of the thousands of documents that Edward Snowden leaked this year on NSA surveillance. Those leaks have raised big questions about whether the agency is violating the Constitution.

Well, yesterday, a federal judge here in Washington, D.C., ruled that the NSA's program to collect the phone records of virtually every American likely crosses that line.

NPR justice correspondent Carrie Johnson begins our coverage.

CARRIE JOHNSON, BYLINE: Outspoken Judge Richard Leon, an appointee of President George W. Bush, has never been one to hold his tongue. And in his 68-page opinion, he likened the NSA mass collection program to the works of George Orwell, said it violated the Fourth Amendment ban on unreasonable searches, and he rubbed salt in the wound by declaring there's no evidence to suggest the program actually works to prevent terrorist attacks.

Conservative lawyer Larry Klayman, the plaintiff in the case, cheered the rebuke of government surveillance.

LARRY KLAYMAN: It was so outrageous. This is the worst violation of Americans' constitutional rights, I think, in our history.

JOHNSON: Klayman, the chairman of the group Freedom Watch, asked the court to stop the NSA program from keeping tabs on his Verizon cellphone. And the judge complied, but he put that order on hold to give the Justice Department time to appeal. Klayman says Judge Leon's courageous.

KLAYMAN: He stuck his neck out. He went up against the establishment. And the ramifications for the country, hopefully, are positive because we've been headed in a very severe downward spiral.

JASON WEINSTEIN: Well, I thought with due respect to Judge Leon that the opinion was completely wrong.

JOHNSON: Former prosecutor Jason Weinstein, now a lawyer in private practice in Washington, says the new ruling ignores a long history of decisions by a foreign intelligence court that approved the program.

WEINSTEIN: In fact, it's in conflict with opinions of, I think, 15 different judges on the FISA court who have held on over 30 occasions that the program is legal and constitutional. And I think that they're right.

JOHNSON: So that's the legal question. Weinstein says whether the U.S. should be gathering all that data is a separate question for lawmakers, not the courts. Members of Congress from both political parties have proposed an overhaul to the phone collection, suggesting for instance, that phone companies hold onto the data, not the government. That change would presumably avoid the constitutional problems the judge identified.

Alex Abdo, a staff attorney at the ACLU, says it's important that the legal underpinnings for the program get a public airing in a public court.

ALEX ABDO: It absolutely is a symbolic victory and even more than that, it's a vindication of, I think, the strength of our democracy and the decisions of those who've been trying to warn us about these programs for years. When exposed to the light of day, not everything the government says in secret will withstand scrutiny.

JOHNSON: The Justice Department says it's reviewing the court decision and that it continues to believe the data collection is legal, in part because a 1979 Supreme Court case held that people have no reasonable expectation of privacy when it comes to phone records held by third parties like telecom companies.

Judge Leon says that ruling no longer applies because so many things have changed in the past generation, including people's use of cellphones and the ability of the government to gather information so cheaply and easily. The U.S. Supreme Court is likely to be the ultimate arbiter.